1. ' MUHAMMAD AFZAL Amami, J.-This appeal through leave of this Court is directed against the judgment dated 19-8-1985 of the Baluchistan High Court; whereby an application for cancellation of bail granted by the trial Court to Nasir Ahmad Bacha respondent No, 1, was dismissed and bail order was affirmed as if having been passed under subsection (2) of section 497, Cr. P. C.
2. ' The prosecution case concisely and briefly stated for the purpose of this appeal is that on account of alleged previous enmity wherein the father of Nasir Ahmad Bacha was murdered and Dr. Behram Khan the appellant herein, was suspected of having a hand in it. This time in this case Sadiq a young student of 19 years of age (younger brother of Dr. Behram Khan) has been murdered and the accusation is against Nasir Ahmad and his three brothers namely, Jamal Nasir, Nanai and Sadiq. It is alleged that the deceased and Noorul Haq P. W. Had embraced each other while standing in a Bazar when a car, with the monogram of an M. P. A. (Nasir Ahmad respondent is an M. P. A.), which was driven by Jamal Nasir accused struck them. Both fell down and the deceased coming up to the driver's side protested. Whereupon Jamal Nasir fired two shots-one hit the deceased as a result of which the death took place, The other three accused including the respondent were then sitting in the back seat. Earlier Noorul Haq had paid a courtesy visit to the kothi (shop) of the accused party where he had seen Jamal Nasir coming to the kothi driving the same car and then all four brothers going out in that very car.
3. ' The appellant was arrested within few hours but his other three brothers, two younger and the third (Jamal Nasir) elder are still absconding.
4. ' The prosecution relied on several pieces of evidence against the respondent which include motive; his having been present in the same car on the back seat; and according to one witness Abdul Hayee, his having told Jamal Nasir to fire at the deceased. In other words, the allegations against the respondent include one of porverbial lalkara together with conspiracy.
5. ' There are certain other aspects of the case but they are not relevant for purpose of the present proceedings except that the F. I. R. Containing the main features of the prosecution case, was lodged very promptly.
6. ' The learned Sessions Judge in an elaborate order found that it was a case of further inquiry and accordingly allowed bail to the respondent in the sum of Rs, 50,000 with two sureties. He also directed that the prosecution could move for the cancellation of bail of the accused if subsequently material evidence is collected against him.
7. Appellant's application for cancellation of bail in the High Court having failed, leave to appeal was granted by this Court on his petition to examine the argument that:-"the prosecution case against the respondent has support of several eye-witnesses and the circumstantial evidence. The question for consideration, inter alia, is whether the facts and the circumstances of this case attracted the principles indicated by this Court in Arhab Ali v. Khamiso and others (1), Ibrahim v.
8. Hayat Gul and others (2) and Muhammad Sadiq v. Sadiq and others (3).
9. ' The learned Chief Justice of the High Court who dismissed the petition for cancellation of bail in an elaborate judgment running over 25 pages came to the conclusion that although the learned Sessions Judge had rightly ordered the release of the respondent on bail under subsection (2) of section 497, Cr. P. C., the necessary conditions for doing so as laid down by this Court in the afore- noticed decisions had not been satisfied in the order granting bail. Accordingly, the High Court judgment took note of almost every material fact and circumstance which at that stage of the matter, could be taken into consideration; and, after noticing the contentions from both the sides it came to the conclusion that no reasonable grounds existed for believing that the respondent had committed a non-bailable offence, but there were sufficient grounds for further inquiry into his guilt, and thus he was found entitled to bail under subsection (2) of section 497, Cr. P. C. In doing so, the High Court has observed in the impugned judgment that it "examined the entire material on the record of the Investigating Agency and also the material placed by the learned counsel for the parties during the arguments".
10. ' Learned counsel for the appellant has tried to show that all the arguments which prevailed with the High Court can be adequately met. He also complained that on some of the vital matters the learned Chief Justice expressed his views so strongly that the trial forum would get influenced by the observations. He argued that the case did not fall within the ambit of subsection (2) of section 497 and therefore, the respondent was not entitled to be released on bail . As of right. And lastly, he pointed out with respect. That an inconsistency (so-called) has crept in the judgment of the case of Muhammad Sadiq and that according to him it needed to be clarified on question of exercise of discretion.
11. We heard all the three learned counsel at great length and have also read the relevant material to which our attention was drawn by the learned counsel. We agree with the learned counsel for the appellant that there are certain observations in the judgment of the High Court which are likely to prejudice the case of one or the other party in the trial forum. It is clarified that the trial forum shall decide the case on its own merits and shall remain uninfluenced by the observations made in the bail orders passed by the Courts.
(1) 1985 SCM R 195 (2) 1985 SCM R 382 (3) P D 1985 C 182 ' Whether or not the respondent uttered a lalkara, before his elder brother fired the shot, is a controversial factual aspect on which the expression of an opinion, one way or the other, by this Court and/or by any other Court might prejudice the case of any of the parties. But it will be fair to remark that for purpose of bail proceedings it was permissible for the High Court to take into account an admitted fact that the so itary witness to this lalkara appeared before the police to make statement under section 161, Cr. P. C. After several days of the occurrence and also the fact that the said witness namely, Abdul Hayee has offered an explanation for this delay. Whether or not his testimony will ultimately, be accepted by the trial forum is a moot point. In these facts, however, it can be made a ground for consideration of bail whether under subsection (1) or subsection (2) of section 497, Cr. P. C.
12. ' It is also a fact that none of the other eye-witnesses who according to the prosecution case were present at the spot has made any allegation against the respondent that he did any overt act except that he kept sitting in the back seat of the car when his brother fired the shots from the front seat. It is also a fact that if the deceased would not have come up to the drivers's seat so as to make the protest the occurrence might not have taken place in the manner as it has happened. All these and similar other circumstances were relevant for purpose of considering whether the case fell within the ambit of subsection (1) or subsection (2) of section 497, Cr. P. C.
13. ' The judgment of the High Court is too elaborate to suit the required needs of either of the provisions. The points involved in the case could have been disposed of in a shorter judgment as well by taking into consideration the main grounds which ordinarily float on the surface of th case and deep analysis of the contentions raised by the parties on each point was not necessary. But that by itself is also no ground for coming to the conclusion that the case could riot be dealt with under subsection (2) of section 497. We are comics that the language used in subsection (1 and subsection (2) of section 497. In so far as the existence or otherwise of the reasonable grounds for be ieving that the accused has committed the offence. Is similar; but the same has been, used in both the provisions in different context. While in subsection (1) of section 497, the phras has been used as a bar to the grant of bail, it is used in subsection (2) as a ground for allowing the bail to the accused as of right. It is not necessary to further discuss this aspect of the matter as the law has already been sufficiently clarified in the decisions of this Court. We, however, agree with the learned counsel that while examining the facts and circumstances of the case for the purpose of bail the case could also have been examined first under subsection (1) of section 497, Cr. P. C. As the offence was punishable with death or imprisonment for life and after having excluded the application of the barring provision contained therein, bail could be then granted under subsection
(2) of section 497, Cr. P. C. But this is only a procedural technicality which does net furnish enough basis for setting aside the impugned judgment: ' Coming to the merits of the case as already noted the circumstances noticed in the judgment of the High Court are not irrelevant for consideration of either granting bail or cancelling the same.
14. Although as held in the aforenoticed decisions of this Court once the Court on consideration of the facts, circumstances and the merits in the case comes to the conclusions that no reasonable grounds exist for believing that the; accused has committed a non-oaiiabie offence, it has no discretion except to release the accused on bail. By virtue of the said subsection, however, while reaching the conclusions on facts the Court has to examine and appreciate the factual controversies and render decisions (tentative) in exercise of proper and lawful discretion giving findings in favour or against the accused on matter of bail.
15. ' This also, disposes of the argument of the learned counsel regarding observations on question of discretion in the decision of this Court in the case of Muhammad. Sadiq PLD 1985 SC 182. Once more it is emphasised that while rendering the decision on the merits the contentions regarding existence or otherwise of reasonable grounds for believing that the a:co.Sed has or has not committed the offence, the exercise is of (properilawfu I) discretion. But once the decision is given in exercise of that discretion in the affirmative in favour of the accused then subsection (2) does not leave any discretion to withhold the bail, subject, of course, to further enquiry.
16. ' With this clarification we find that the discretion exercised by the learned Sessions Judge and the High Court in coming to a conclusion favourable to the accused does not suffer from any legal or other defect. Tnat being so the order for grant of bail does not merit interference. We would, however, also repeat the observation made by the learned Sessions Court that application for cancellation of bail might be moved if subsequently material evidence justifying cancellation of bail is brought on record.
17. ' Before closing the judgment it may be remarked that the following cases which do not need any specific comment for the purpose of disposal of this appeal, were also cited.At the bar : Ch. Abdul Malik v. The State (1), Muhammad Shafiq v. Muhammad Hanif (2), Khalid Javed Gillan v.
18. The State (3).And The Siate v. Aziz alias Abdul Aziz (4).
19. With these observations this appeal, is dismissed.
(1) PLD 1968 SC 349 (2) 1970 SCMR 143 (3).PLD 1978 SC 256 (4) PLD 1985 Kar. 27